Citation Nr: 0303435
Decision Date: 02/27/03 Archive Date: 03/05/03
DOCKET NO. 00-17 286 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUE
Entitlement to service connection for post traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Trueba-Sessing, Counsel
INTRODUCTION
The veteran served on active duty from December 1977 to
October 1978.
This case comes before the Board of Veterans' Appeals (Board)
from a June 2000 rating decision by the Department of
Veterans Appeals (VA) Boise, Idaho, Regional Office (RO).
After remand to the RO in October 2001 for additional
development, the veteran's case is once again before the
Board for appellate review.
The Board notes that, in the July 2000 notice of
disagreement, the veteran requested a hearing before a
hearing officer. Per an August 2000 Routing and Transmittal
Slip, the RO attempted to scheduled the hearing for October
or November 2000. However, as the veteran could not be
located, the request for a hearing was deemed canceled, per a
February 2001 VA form 119 (Report of Contact). Subsequently,
in a September 2001 statement, the veteran's representative
indicated that no hearing was desired at that time, and that
the case should be forwarded to the Board. Lastly, per an
October 2002 VA memorandum to the veteran's representative,
it appears the veteran and his representative were given an
additional opportunity to request an appeals hearing.
However, no response to the October 2002 VA memorandum is of
record. As the record does not contain further indication
that the veteran or his representative has requested that the
hearing be rescheduled, the Board deems the veteran's July
2000 request for a hearing withdrawn. See 38 C.F.R. §
20.700-20.704 (2002).
FINDINGS OF FACT
1. VA notified the veteran of the evidence needed to
substantiate his PTSD claim and obtained and fully developed
all evidence necessary for the equitable disposition of that
claim.
2. The veteran has been diagnosed with PTSD.
3. The veteran did not engage in combat.
4. The veteran's PTSD symptoms have not been attributed to a
verified in-service stressor.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by active service. 38
U.S.C.A. §§ 1131, 1154, 5103A, 5107 (West 1991 & Supp. 2002);
38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board is satisfied that all
assistance to the appellant by VA has been provided, as
required by law regarding the issue addressed in this appeal.
On November 9, 2000, the President signed the Veterans Claims
Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5103A (West
Supp. 2002); 66 Fed. Reg. 45,630-45,632 (Aug. 29, 2001)
(codified as amended at 38 C.F.R.
§ 3.159), which modified the circumstances under which VA's
duty to assist claimants applies, and how that duty is to be
discharged. The law affects a case such as this because the
claim was pending on the date of enactment of the new law.
This law eliminates the concept of a well-grounded claim,
redefines the obligations of VA with respect to the duty to
assist, and supersedes the decision of the United States
Court of Appeals for Veterans Claims (Court) in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, 14 Vet. App. 174 (2000) (per curiam order), which had
held that VA cannot assist in the development of a claim that
is not well grounded. The new law also includes an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.
In August 2001, VA issued regulations to implement the VCAA.
66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at
38 C.F.R. § 3.102, 3.156(a), 3.159 and 3.326(a)). The
amendments were effective November 9, 2000, except for the
amendment to 38 C.F.R. § 3.156(a) which is effective August
29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a),
the second sentence of 38 C.F.R. § 3.159(c), and
3.159(c)(4)(iii), VA stated that the provisions of this rule
merely implement the VCAA and do not provide any rights other
than those provided in the VCAA. 66 Fed. Reg. 45,620, 45,629
(August. 29, 2001). Accordingly, in general where the record
demonstrates that the statutory mandates have not been
satisfied, the regulatory provisions likewise are not
satisfied. However, in this case, for the reasons set forth
below, the VA has complied with the VCAA, as well as the
recent implementing regulations.
First, VA has a duty to notify the claimant and the
representative, if any, of any information and evidence
needed to substantiate and complete a claim. 38 U.S.C.A. §
5103A (West Supp. 2002); 66 Fed. Reg. 45,630-45,632 (Aug. 29,
2001) (codified as amended at 38 C.F.R. § 3.159(b));
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board
notes that the record reflects the veteran is homeless, per a
February 2001 VA form 119 (Report of Contact) and a November
2002 statement from the veteran's representative. However,
the VA has made every effort to notify both the veteran and
his representative of the evidence needed to prove the claim
on appeal via the June 2000 rating decision, the August 2000
statement of the case, the October 2001 Board remand, October
2001 RO correspondence, and the July 2002 supplemental
statement of the case. Specifically, the veteran and his
representative have been informed that service connection may
be granted for diseases which were incurred in or aggravated
by active service, which became manifest to a compensable
degree within a year from service discharge if within the
list of presumptive diseases, or which are proximately due or
the result of a service connected disease or injury.
Additionally, via the October 2001 RO correspondence, the
veteran and his representative were given specific
information with respect to the VCAA and of the changes in
the law pursuant to the enactment of the VCAA. In addition,
the RO requested the veteran to submit a complete, detailed
description of his alleged stressors, including the dates and
places the incidents occurred, the unit(s) to which he was
assigned at the time, and the names of any individuals who
were injured or killed during the incidents, and reports from
health care providers who had treated the veteran for PTSD.
The October 2001 RO correspondence also requested the veteran
to furnish the dates and names of all health care providers
who have treated him for his PTSD. However, no response to
the October 2001 RO correspondence with respect to the
stressor information requested or as to the names of any
additional treating health care provider is of record. As
such, the Board finds that the notification requirement has
therefore been satisfied.
Secondly, VA has a duty to assist the claimant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A (West Supp. 2002); 66 Fed. Reg. 45,630-45,632 (Aug. 29,
2001) (codified as amended at 38 C.F.R. § 3.159(c)). In this
case, all known and available relevant medical records,
including the service medical and personnel records, and all
available medical records from private and VA health care
providers, have been obtained and associated with the claims
file. Although he has been given the opportunity to identify
additional sources of treatment/records and to submit
additional evidence, including in the October 2001 and
December 2002 RO letters, thus far, the veteran and/or his
representative have not identified any additional evidence
which the veteran desires the VA to assist him in obtaining.
Furthermore, the appellant was given the opportunity to
present testimony during an RO hearing, but such hearing was
canceled because the veteran could not be located, as
described above. As well, the veteran was scheduled for a VA
examination in June 2002, but he failed to report to such
examination. In this respect, the Board notes that the
November 2002 statement from the veteran's representative
indicated that the representative attempted to contact the
veteran via phone and/or via mail in order to reschedule the
VA examination; however, the veteran could not be located.
Thus, the Board finds that the VA's duty to assist the
veteran has been fulfilled as well. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
The veteran is reminded that the VA's duty to assist him is
not a one way street; the veteran also has an obligation to
assist in the adjudication of his claim. See Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991). The veteran must be
prepared to meet his obligations by cooperating with the VA's
efforts to provide an adequate medical examination and by
submitting to VA all medical evidence supporting his claim.
See Olson v. Principi, 3 Vet. App. 480 (1992). Further, in
the normal course of events, it is the burden of the
appellant to keep the VA apprised of his whereabouts. If he
does not do so, there is no burden on the VA to "turn up
heaven and earth" to find him. See Hyson v. Brown, 5 Vet.
App. 262 (1993). As such, the Board will adjudicate this
claim based on the evidence currently of record.
For the foregoing reasons, the Board finds that VA has done
everything reasonably possible to assist the veteran and that
no further action is necessary to meet the requirements of
the VCAA and the applicable regulatory changes published to
implement that statue.
The veteran seeks service connection for PTSD. The
regulation governing PTSD claims, 38 C.F.R. § 3.304(f), was
amended twice in the recent past. The first amendment, which
became effective March 7, 1997, serves primarily to codify
the Court's decision in Cohen v. Brown, 10 Vet. App. 138
(1997) and to bring 38 C.F.R. § 3.304(f) in line with the
governing statute, 38 U.S.C.A. § 1154(b) (West 1991), which
relaxes certain evidentiary requirements for PTSD claimants
who have combat-related stressors. The second amendment,
which became effective March 7, 2002, addresses the type of
evidence that may be considered relevant in corroborating the
occurrence of a stressor in claims for service connection for
PTSD resulting from personal assault.
Where the law or regulations change while an appeal is
pending, the version most favorable to the claimant applies,
absent congressional intent to the contrary. Karnas v.
Derwinski, 1 Vet. App. 308, 312-313 (1991). In this case,
the veteran submitted his claim of service connection for
PTSD in December 1999, which was after the first amendment
became effective in March 7, 1997. As well, the Board notes
that, given that the veteran is not claiming that he
developed PTSD from a personal assault, the second amendment
effective March 7, 2002 does not substantively affect the
veteran's claim. Therefore, any failure in the part of the
RO to notify the veteran of any changes in the law and/or to
evaluate the claim under both the former and revised
regulations constitutes harmless error. The July 2002
supplemental statement of the case appears to include the new
version of 38 C.F.R. § 3.304(f). In any event, the Board
finds that in essence, because the old and new applicable
criteria for evaluating the veteran's PTSD claim are
substantially the same, neither version of the regulation is
more favorable to the veteran. Remanding the case to the RO
for further consideration would serve to further delay
resolution of the claim with no benefit flowing to the
veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided).
Prior to March 7, 1997, service connection for PTSD required
medical evidence establishing a clear diagnosis of the
condition, credible supporting evidence that the claimed in-
service stressor actually occurred, and a link, established
by medical evidence, between current symptoms and the claimed
in-service stressor. If the claimed stressor was related to
combat, service department evidence that the veteran engaged
in combat or that he was awarded a combat citation would be
accepted, absent evidence to the contrary, as conclusive
evidence of the claimed in-service stressor. 38 C.F.R. §
3.304(f) (1996).
Effective as of March 7, 1997, the provisions of 38 C.F.R. §
3.304(f) were amended to reflect the Court's decision in
Cohen v. Brown, 10 Vet. App. 128 (1997). In this regard,
service connection for PTSD requires medical evidence
diagnosing the condition in accord with 38 C.F.R. § 4.125(a);
a link, established by medical evidence, between current
symptoms and an in-service stressor; and credible supporting
evidence that the claimed in-service stressor occurred. If
the evidence establishes that the veteran engaged in combat
with the enemy and the claimed stressor was related to that
combat, in the absence of clear and convincing evidence to
the contrary, and provided that the claimed stressor was
consistent with the circumstances, conditions, or hardships
of the his service, the veteran's lay testimony alone could
establish the occurrence of the claimed in-service stressor.
See 64 Fed. Reg. 32,807-08 (June 18, 1999) (codified at 38
C.F.R. § 3.304(f) and 38 C.F.R. § 4.125 (2000) (requiring
PTSD diagnoses to conform to the criteria in the DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994)
(DSM-IV)). See also 38 U.S.C.A. § 1154(b) (West 1991).
If, however, the VA determines either that the veteran did
not engage in combat with the enemy or that the veteran did
engage in combat, but that the alleged stressor is not combat
related, the veteran's lay testimony by itself is not
sufficient to establish the occurrence of the alleged
stressor. Instead, the record must contain service records
or other evidence to corroborate the veteran's testimony or
statements. See Moreau v. Brown, 9 Vet. App. 389 (1996).
In this case, the veteran essentially contends that he
developed PTSD as a result of his participation in the
recovery efforts which followed the crash of a commercial jet
and smaller plane while stationed at Point Loma Sub Station
in San Diego, California, during his period of active
service. He claims that he was on site when the jet crashed
outside Balboa Naval Hospital and that he helped with crowd
control as well as with the loading of bodies. Additionally,
the veteran claims that he assisted a fire crew in
controlling the fire, adding that he was a firefighter in the
military.
The available service personnel records show that the veteran
was discharged from service in October 1978 while stationed
at the Naval Station in San Diego, California. The records
reflect that he served in San Diego in December 1977 and from
April 1978 until his discharge in October 1978, including
service aboard the USS Perry from July 7, 1978 to September
26, 1978. He took a course in fire pump repair from April
1978 to June 1978, and his DD Form 214N (Report of Separation
from Active Duty) confirms he had been trained in "fire pump
repair." Lastly, a September 1978 discharge narrative
indicates the veteran was a hull maintenance fireman
apprentice, and that he was going to be discharged from
active service effective October 2, 1978 due to a physical
disability which pre-existed his service.
The record also includes a newspaper article, shown to have
been taken from the internet in August 2000 by the RO. This
article from The San Diego Union- Tribune, dated September
1998, indicates that twenty years had passed from the date of
a midair crash between two planes, a Pacific Southwest
Airlines and a Cessna, over San Diego, California. The exact
date of the crash was noted to have been September 25, 1978.
The evidence of record includes the veteran's service medical
records which are negative for a diagnosis of PTSD, or any
other psychiatric disorder. Additionally, the post-service
medical evidence includes treatment records from the VA
Medical Centers (VAMCs) in White City, Oregon, Spokane,
Washington, and Boise, Idaho dated from 1979 to 1992. These
records basically describe the treatment received over time
for various health problems, including psoriasis, but these
records do not contain any discussions as to any PTSD
symptomatology or treatment.
Additionally, treatment records from the Boise, Idaho, VA
Medical Center (VAMC) dated from May 1999 to December 2001
include August 1999 progress notes which reflect the veteran
reported that, while stationed in San Diego in 1978, he
witnessed a plane crash between a Pacific Southwest Airlines
airliner and a Cessna plane close to the Balboa Hospital. He
further indicated that he was enlisted to help search for
bodies in the wreckage. An impression of PTSD was included
as part of the progress note. Furthermore, the Idaho VAMC
records also include a November 1999 VA hospital discharge
summary showing that PTSD was included as part of the
"discharge problem list." And, July 2000 treatment notes
also show PTSD as part of the veteran's "problem list," and
indicate the veteran's stressor was witnessing a plane crash
and being involved in the search for bodies.
In February 2001, the veteran was admitted to the Boise VAMC
Emergency Room following a 2-day history of abdominal pain
with nausea and vomiting after increased drinking and
homelessness. His past medical history included PTSD, but
not his discharge assessment or diagnoses. The veteran had
been admitted in October 1999 for the similar reasons; the
veteran's discharge diagnoses at that time included alcohol
intoxication/withdrawal and pancreatitis, both resolved.
The Board notes that, in an October 2001 statement from the
veteran's representative, the representative suggested that
the VA should verify the veteran's participation in the
aftermath of the 1978 airline collision. The representative
further urged VA to seek to obtain the veteran's military
unit records at the time of the accident, lessons learned and
quarterly reports, as well as his military administrative
file.
As a result, the Board remanded the case to the RO in order
to address the concerns of the veteran's representative. As
requested in the October 2001 Board remand, the RO obtained
additional personnel records for the veteran, in addition to
the microfiche copies of personnel records included in the
claims file prior to the Board remand. As well, via an
October 2001 letter with copy to the veteran's
representative, the RO attempted to contact the veteran in
order to obtain the names and addresses of all the health
care providers who had treated him for his PTSD. The October
2001 RO correspondence further requested that the veteran
furnish proof of his involvement with the recovery efforts
following the above-mentioned September 25, 1978, plane
accident, namely, 1) the location of his exact whereabouts on
that day, 2) the name and unit to which he was assigned on
that day, and 3) whether he was awarded any commendations as
a result of his participation in the plane crash recovery
effort. The veteran was also asked to supply specific
evidence which documented that he was in fact a Navy
firefighter, given that the personnel records do not indicate
that he was a firefighter, but rather only a hull maintenance
fireman apprentice. To the present, the record is devoid of
any response and/or specific information regarding the above
inquiries, either from the veteran and/or his representative.
Lastly, the Board notes that the veteran was scheduled for a
VA examination in June 2002, but he failed to report to the
examination. A November 2002 statement from the veteran's
representative indicates that the representative attempted to
contact the veteran via phone and/or via mail in order to
reschedule the VA examination, but that the veteran could not
be located. Again, a January 2003 Appellant's Brief
submitted by the representative acknowledges that the veteran
was scheduled for such VA examination, but that he reportedly
failed to report to the examination. No additional requests
for a re-scheduling of the VA examination have been
submitted.
As discussed above, the VA's duty to assist a claimant is not
a one way street; the veteran also has an obligation to
assist in the adjudication of his claim. See Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991). The veteran must be
prepared to meet his obligations by cooperating with VA's
efforts to provide an adequate medical examination and by
submitting to VA all medical evidence supporting his claim.
See Olson v. Principi, 3 Vet. App. 480 (1992). In the normal
course of events, it is the burden of the appellant to keep
the VA apprised of his whereabouts. If he does not do so,
there is no burden on the VA to "turn up heaven and earth" to
find him. See Hyson v. Brown, 5 Vet. App. 262 (1993).
Upon a review of the record and given the veteran's repeated
failure to cooperate with VA, the Board finds that the RO has
notified the veteran of the evidence needed to substantiate
his claim and has obtained and fully developed all evidence
necessary for the equitable disposition of that claim. As
well, the Board finds that the preponderance of the evidence
presently of record is against an award of service connection
for PTSD.
Specifically, the evidence does not show, and the veteran
does not contend, that he engaged in combat against the enemy
during his period of active service, and thus, the combat
veteran presumptions are not for application in this case.
The veteran's DD-214 and/or personnel records do not reflect
that he engaged in combat during his active service, as well
as fail to show that he received commendations or awards such
as the Combat Infantryman Badge, Purple Heart, or similar
citation, typically awarded primarily or exclusively for
circumstances relating to combat. See VAOPGCPREC 12-99.
Additionally, as the alleged stressor is not combat related,
the veteran's lay testimony by itself is not sufficient to
establish the occurrence of the alleged
stressor. Instead, the record must contain service records
or other evidence to corroborate the veteran's testimony or
statements. As described above at length, the RO has made
several unsuccessful attempts to obtain such evidence from
the veteran, and thus, verification of the claimed stressors
has not been feasible. As a matter of fact, the service
personnel records show evidence clearly contradicting the
veteran's reported description of events/stressors.
Specifically, the personnel records show the veteran served
aboard the USS Perry from July 7, 1978 to September 26, 1978,
which does not support the veteran's account of being
stationed at Point Loma Sub Station in San Diego when
witnessing the plane crash. In any event, the Board finds
that any additional information which may have assisted the
VA in attempting to verify the veteran's stressor has not
been forthcoming, and thus, the VA has reasonably complied
with its duty to obtain and develop all evidence necessary
for the equitable disposition of the claim.
Lastly, even if the veteran's stressor could be verified, the
veteran's claim still fails. Although the medical records
include various diagnoses of "history of PTSD," the Board
finds that such diagnoses are not sufficient to meet the
requirements of 38 C.F.R. § 3.304(f) as these diagnoses or
symptoms have not been attributed to a verified in-service
stressor. As discussed previously, the veteran was scheduled
for a VA examination in June 2002, but he failed to report to
such examination.
Inasmuch as the veteran has not submitted evidence showing
that he engaged in combat and his PTSD symptoms have not been
attributed to a verified in-service stressor, the Board finds
that the preponderance of the evidence is against the
veteran's claim for entitlement to service connection for
PTSD. Accordingly, service connection for PTSD must be
denied. In reaching this decision, the Board considered the
doctrine of reasonable doubt; however, as the preponderance
of the evidence is against the veteran's claim, the doctrine
is not for application.
ORDER
Service connection for PTSD is denied.
____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.